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Supreme Court of New Jersey
March 2, 1999, Argued ; August 9, 1999, Decided
A-16 September Term 1998
[*3] [**1246] The opinion of the Court was delivered by
[*4] O'HERN, J.
Our medical-legal jurisprudence is based on images of health care that no longer exist. At an earlier time, medical advice [**1247] was received in the doctor's office from a physician who most likely made house calls if needed. The patient usually paid a small sum of money to the doctor. Neighborhood pharmacists compounded prescribed medicines. Without being pejorative, it is safe to say that the prevailing attitude of law and medicine was that the "doctor knows best." Logan v. Greenwich Hosp. Ass'n, 191 Conn. 282, 465 A.2d 294, 299 (1983).
Pharmaceutical manufacturers never [***11] advertised their products to patients, but rather directed all sales efforts at physicians. In this comforting setting, the law created an exception to the traditional duty of manufacturers to warn consumers directly of risks associated with the product as long as they warned health-care providers of those risks.
For good or ill, that has all changed. Medical services are in large measure provided by managed care organizations. Medicines are purchased in the pharmacy department of supermarkets and often paid for by third-party providers. Drug manufacturers now directly advertise products to consumers on the radio, television, the Internet, billboards on public transportation, and in magazines. For example, a recent magazine advertisement for a seasonal allergy medicine in which a person is standing in a pastoral field filled with grass and goldenrod, attests that to "TAKE [THE PRODUCT]" is to "TAKE CLEAR CONTROL." Another recent ad features a former presidential candidate, encouraging the consumer to "take a little courage" to speak with "your physician." The first ad features major side effects, encourages the reader to "talk to your doctor," and lists a brief summary of risks [***12] and contraindications on the opposite page. The second ad provides a phone number and the name of the pharmaceutical company, but does not provide the name of the drug.
The question in this case, broadly stated, is whether our law should follow these changes in the marketplace or reflect the [*5] images of the past. We believe that when mass marketing of prescription drugs seeks to influence a patient's choice of a drug, a pharmaceutical manufacturer that makes direct claims to consumers for the efficacy of its product should not be unqualifiedly relieved of a duty to provide proper warnings of the dangers or side effects of the product.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
161 N.J. 1 *; 734 A.2d 1245 **; 1999 N.J. LEXIS 1000 ***; CCH Prod. Liab. Rep. P15,809
SARAY PEREZ, CHERYL BAILEY, KIMBERLY BARTLETT, ANNA CESAREO AND SORAYA ARIAS, PLAINTIFFS-APPELLANTS, v. WYETH LABORATORIES INC., A SUBSIDIARY OF AMERICAN HOME PRODUCTS CORPORATION; AMERICAN HOME PRODUCTS CORPORATION; WYETH-AYERST LABORATORIES DIVISION OF AMERICAN HOME PRODUCTS CORPORATION; WYETH-AYERST INTERNATIONAL INC.; WYETH-AYERST LABORATORIES COMPANY AND DOW CORNING FRANCE, S.A., DEFENDANTS-RESPONDENTS.
Prior History: [***1] On certification to the Superior Court, Appellate Division, whose opinion is reported at 313 N.J. Super. 511, 713 A.2d 520 (1998).
advertising, warning, manufacturer, patient, consumers, prescription drug, intermediary, FDA, marketing, drugs, risks, direct-to-consumer, pharmaceutical, health-care, prescribing, pharmaceutical company, product liability, products, prescription, regulations, duty to warn, labeling, pharmaceutical manufacturer, adequate warning, side effect, broadcast, implanted, provider, drug manufacturer, footnotes omitted
Healthcare Law, Medical Treatment, Medical Devices, General Overview, Torts, Products Liability, Types of Defects, Marketing & Warning Defects, Healthcare Litigation, Actions Against Healthcare Workers, Design Defects, Manufacturing Defects, Theories of Liability, Strict Liability, Governments, Courts, Patient Consent, Informed Consent, Business & Corporate Compliance, Governments, Agriculture & Food, Federal Food, Drug & Cosmetic Act, Computer & Internet Law, Internet Business, Online Advertising, Labor & Employment Law, Occupational Safety & Health, Duties & Rights, Evidence, Privileges, Doctor-Patient Privilege, Scope, Federal Government, Employees & Officials, Failures to Disclose & Warn, Prescription Medications, Civil Procedure, Remedies, Damages, Punitive Damages, Types of Damages, Punitive Damages, Causation, Proximate Cause, Elements, Intervening Causation, Summary Judgment, Entitlement as Matter of Law